Is The Roberts Court The 21st Century Jim Crowe Court?

The Supreme Court upheld Michigan’s affirmative action ban. The ruling means that the State of Michigan is able to eliminate race as a basis for determining who gets into college or not. This ban was passed by a voter initiative. The old argument of “race doesn’t matter anymore” is the battle cry. There are currently three states that have similar bans. Michigan, California, and Washington. In all three states, minority enrollment into State Colleges has plummeted since the bans were put in place. There is currently a battle raging in California to reinstate affirmative action in determining college enrollment.

The Roberts Court has overturned several laws that were the result of fighting against the Jim Crowe court. That court basically ruled that blacks do not have the same rights a whites. That was finally overturned in the sixties with the Civil Rights Act and the Voting Rights Act. Now, the Roberts Court is trying to bring the basic “separate but equal” stupidity back into vogue.

The problem is that this will not just cover minorities of race. Blacks and Latinos are the prime victims, but other groups are also in the cross-hairs of the Roberts Court. Only four states that ban same-sex marriage is not having their bans challenged in court, yet. Popular opinion has swung in favor of same-sex marriage rights. There has been hope that the courts will rule in favor of same-sex marriage. But, there are other precedents that this court has used to overturn rulings from the past, and one very disturbing opinion from the Michigan case that may stop equal rights in its tracks.

The elimination of the most important part of the Voting Rights Act that was struck down, namely that states with a history of voter restrictions must get pre-approval before implementing new voting rules led to a mass of states passing voter restriction laws called “Voter ID” laws all in the name of “combating voting fraud”, which really doesn’t exist! They are clearly intended to disenfranchise minorities, youth, and elderly voters.

But in the Michigan opinion, one thing stands out to me that is very disturbing. Justice Anthony Kennedy said voters chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment. Kennedy said nothing in the Constitution or the court’s prior cases gives judges the authority to undermine the election results. So what Justice Kennedy and his majority on the court are saying, if the voters choose to deny rights to a group of people, the courts cannot do anything about it to protect the minorities being adversely affected.

A large number of states that have passed same-sex marriage discrimination laws have done so by a ballot initiative. Justice Kennedy’s writing seems to suggest that if a discrimination voter initiative manages to pass, that will be the end of it. His argument of “presumably because such a system could give rise to race-based resentment” echoes all to well the Jim Crowe courts actions. Since when does the constitution or civil rights depend upon worrying about “race-based resentment”. If that were the case, the Civil Rights Act and the Voting Rights Act would never have been passed.

The Republicans have coined the term “slippery slope” to deny rights to citizens. They use it in instances like “if we allow same-sex marriages, it will cause a “slippery slope’ to bestiality. But this “slippery slope” can work both ways including affecting large groups of our population and put them on a path of second-class citizenship. If you can take away race, you can take away sexual orientation. If you can take away sexual orientation, you can take away religion. If you can take away religion, you can take away nationality.

It may be harsh to say, but the actions of the Roberts Court has taken on a very similar smell as the Jim Crowe Court. Only time will tell how the court rules on the same-sex marriage issue. We will get some understanding of how it is leaning when they decide on the birth control mandate in the ACA that companies are challenging on “religious” grounds. If their argument is upheld, the flood-gates will open and we will see many more rights taken away from everyone not considered a “true conservative”.

There is something very wrong with a Supreme Court that rules that corporations and corporate spending in elections is the same as “people”, yet is willing to overturn rulings that give equal opportunity to “real people” just trying to get ahead. All of the social progress we made in the last 50 years is hanging on the Roberts Court. Will we continue our progress? Or, will we return to the Jim Crowe days with old and new victims?

A technical point is that Kennedy did not say that voters could “choose to deny rights to a group of people” but that they could choose to ban a method of achieving equality. That is, the control is over the means, not the ends.

However, that doesn’t help Kennedy because

– it assumes that other equally effective methods are available when they are not (and if they are not, the ban does become a barrier to equality)

– creates a new inequality of preference (by leaving intact forms of preference preferred by the majority while banning those preferred by and of use to the minority)

– fails to explain why, then, voters could not bar the use of every method of trying to achieve equality one method at a time

– and fails to explain how it can be proper to actively ban the use of a legal method of attempting to remedy inequality (yes, still legal because the ban apparently only applies to public institutions, so private businesses and institutions can still institute such programs if they choose; whether they would or not is irrelevant to if they could) when that ban has a clearly disparate racial impact.

You call it a new Jim Crow court. I like the description of the attorney who argued to overturn the ban: The case is this generation’s Plessey v. Ferguson.

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